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White House Official Says The President Is Prepared To Issue The First Veto Of His Term If Congress Repeals National Emergency; Democrats Are Planning To Introduce A Resolution, Disapproving Of The Emergency Declaration; FBI Director, Andrew McCabe, Is Speaking Out About The Chaotic Months After James Comey Was Fired From The FBI. Aired 6-6:30a ET

Aired February 18, 2019 - 06:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[06:00:00]

ANDREW MCCABE, FORMER FBI DEPUTY DIRECTOR: ...Attorney General was basically trying to take the president down through the 25th Amendment.

UKNOWN FEMALE: Well, it's incredible. We have a president that people within the government don't trust.

UNKNOWN MALE: This is NEW DAY with Alisyn Camerota and John Berman.

ALISYN CAMEROTA, CNN ANCHOR: We want to welcome our viewers in the United States and around the world. This is a special holiday edition of NEW DAY.

JOHN AVLON, CNN ANCHOR: Yes.

CAMEROTA: It's Monday, February 18, 2019. It's President's Day here in America, six o'clock here in New York. John Berman is off today and John Avlon joins me. Great to have you.

AVLON: Happy President's Day.

CAMEROTA: And to you. Thank you for being here on a holiday.

AVLON: I brought my stove pipe hat. But later in the show.

CAMEROTA: Later. Later.

AVLON: A littler early for the international crowd.

CAMEROTA: Okay. Meanwhile, a top White House official says the president is prepared to issue the first veto of his term if Congress tries to repeal his national emergency. It circumvents Congress for border wall money.

(BEGIN VIDEO CLIP)

CHRIS WALLACE, FOX NEWS HOST: Will the president veto that? Which would be the first veto of his presidency. STEPHEN MILLER, SENIOR ADVISER TO PRESIDENT TRUMP: Well, obviously

the president is going to protect his national emergency declaration Chris, and I know that we're out of time but I, again, want to make this point, there is no threat ...

WALLACE: So, yes, he will veto?

MILLER: There -- he's going to protect his national emergency declaration, guaranteed.

(END VIDEO CLIP)

CAMEROTA: All right, Democrats are planning to introduce a resolution, disapproving of the emergency declaration, where that is expected to pass both chambers. If the president veto's that resolution, will enough Republican lawmakers then go against the president to override that veto?

AVLON: That is the question and President Trump is already facing legal challenges, which he acknowledged, he expected. California's Attorney General says he's working with officials in several other states to sue the White House immanently. We're expecting to see demonstrations across the country today in protest of the president's emergency declaration.

Plus, we have the latest bombshell revelations from fired FBI Deputy Director, Andrew McCabe's new book and why one prominent Republican wants to haul McCabe before Congress to answer questions.

CAMEROTA: All right, so we have a lot to discuss. Let's bring in Rachel Bade, she's a Congressional Reporter for the "Washington Post." Elie Honige he's a former Federal Prosecutor. And Mark McKinnon, former Senior Adviser to the George W. Bush and John McCain campaigns, and Creator, Executive Producer and Co-Host of "The Circus," which airs Sunday nights on Showtime.

Well, we're out of time guys. No. Great to have all of you. So, Mark, where are Republicans today on this? I mean there are some, Senator's Lamar Alexander, Thom Tillis, who are saying how uncomfortable, publically, they are with this. But, what happens now? Are there going to be enough Republicans to shut this down?

MARK MCKINNON, CREATOR, CO-HOST, "THE CIRCUS": They're going to fold, yes. They're going to be with the president on the vote and they'll sustain it. You know I -- it's fascinating to think about this issue overall and where we've come on it. For every action, there's an equal and opposite and reaction, which would surprise you.

But, here's a really interesting thing that's counterintuitive. When asked whether or not immigration helps or hurts the country, in 2006 55 percent says it hurts the country, 35 percent says it helps. Today, 61 percent say it helps the country and 28 percent say it hurts the country.

So, I -- here -- I'll surprise you here John, I think that politically what the Administration has done is in some ways smart because they say listen, we blew it, we should have done this when we had Republicans in Congress, we had a majority, we didn't. Now what are we going to do? We promised these people we'd have the wall, we come up with this declaration of emergency idea.

Mick Mulvaney and Stephen Miller come up with some -- three different pots of money, they'll tie it up in the courts so they can say to their base, we're doing it, we promised it, we're getting some money, we're doing it, we're fighting the courts, we're fighting the Democrats.

The problem is, they're fighting it -- they're fighting it out on a hill that most of America doesn't care about anymore. They don't care about this issue, so they're fighting it out over an issue that 28 percent of the country ...

CAMEROTA: And yet, Republicans are going to fold?

MCKINNON: Yes, I think so.

AVLON: Yes, and Rachel, I mean does that dovetail with what you're hearing and you're reporting on the Hill? Because a lot of folks are saying, look, the real battle will be whether they can get the amount of votes for an override, but obviously, this contradicts core Republican beliefs about executive power and additional legal challenges potentially.

RACHEL BADE, CNN POLITICAL ANALYST: That's exactly right, I think a lot of them will fold. I -- obviously, right now we're seeing a party that is very divided on this issue.

Right now it's going to -- it's easily going to pass House, the House is going to introduce this resolution that would disapprove of the emergency declaration. It'll sail through the House. In the Senate they only need four Republicans to cross the aisle and vote with Democrats and we've seen dozens of Republicans come out and say that they do not like this idea, however, some of them, since Trump ignored their suggestion that he not do this and moved forward with it anyway, they have actually stifled their criticism and I think that that's pretty telling.

It's a really difficult position for the, because they've reported to support the separation of powers and wanting Congress to reclaim power of the purse. And they criticized Barack Obama for similar moves like this, right?

But this is Trump. He's very popular with the base, a lot of them, 22 Senate Republicans are up again in 2020 and if they go against the president there's a fear of either getting primaried or getting blow back from the far right that will hurt them in their mid-term -- or in their elections.

[06:05:00]

And so, they're in this impossible position. I tend to agree with Mark, I think a lot of them are not saying anything because they don't want to come out against right now, and will ultimately fall in line, although it -- begrudgingly so. We'll just have to see how many.

CAMEROTA: The hypocrisy of how -- of Republicans used to say about the imperial presidency when ...

AVLON: Oh, yes.

CAMEROTA: ...it was President Obama and he used executive actions. It is stunning. On Friday there was this, you know, sort of free wielding, sometimes strange press conference that the president held -- or announcement that the president had, in which he talked about how he thinks it's all going to play out in the courts. Okay? So, this is what he thinks the next steps are. So, let me just play this for you.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: They will sue us in the Ninth Circuit even though it shouldn't be there and we will possibly get a bad ruling and then we'll get another bad ruling and then we'll end up in the Supreme Court and hopefully we'll get a fair shake.

(END VIDEO CLIP)

(LAUGHTER)

CAMEROTA: Have you ...

AVLON: Was that just a nice view to the future?

CAMEROTA: That was a question. Let's -- how do you think, legally, this is going to play out?

ELIE HONIG, FORMER FEDERAL PROSECUTOR: It was pretty sing-songy, but he's actually maybe not far off. So, in a legal dispute like this, the advantage usually starts with the president, because the courts don't like to get involved in what they call, political questions. This is the way the court sometimes punts. They say, look, we're the judicial branch, we don't just automatically substitute out judgment for the president's judgment, however, that press conference, his lawyers had to be cringing because he gave away so much that could take this into a different category, when he said, I don't need to do this.

The fact that it took him 35 days of a shutdown ...

MCKINNON: That's why we use Teleprompters.

HONIG: Yes, exactly. I mean, his lawyers -- I felt for his lawyers sitting there thinking, oh my gosh, he's giving them page one of their brief right now, so this case might be different.

First of all, you have those facts, also, he's talking about diverting money that Congress did not appropriate. And if you look at the other emergency declarations, 31 of them on the books right now, dating back to Jimmy Carter, they don't deal with money, with the power of the purse. CAMEROTA: Right. That's why this is unprecedented.

HONIG: Yes.

CAMEROTA: They're trying to make it sound like this happens all the time. In fact, he said that. This happens all the time, it was no big deal. That is the thing that makes this unprecedented.

HONIG: Yes, it's different legally. It could change the outcome.

AVLON: Well -- and you're running into basic separation of powers issues. I mean, you know, and that's presumably what part of the ground that this will get fought on, Rachel, is that the Congress has the power to appropriate.

It's laid out pretty clearly and that's what's being contested here in addition to questions about how you can have an emergency when you've been talking about it for two months.

BADE: Yes, exactly. That's the first thing you hear lawmakers talk about, was this is a power that is designated by the founders of our Constitution and founders of our country, specifically for Congress.

But, I -- you know, you guys were talking about this press conference and how it's sort of could of infringe on any legal argument the president and his administration might give to try to defend their actions.

It was clear, Stephen Miller was out there on Sunday doing clean-up on aisle four on this exact issue, saying, listen, there really is an emergency. The president didn't really -- when he said, I didn't need to do this, he wasn't saying there was no emergency, he was saying, past presidents ignored emergencies and he could ignore this emergency, but he's not.

So, they were really trying to clean that up because they knew it was such a big problem. But there's another issue in the courts that we're going to need to watch, this whole issues with ranchers and their land being seized.

It turns out that something like two-thirds of border territory is privately owned and we're already hearing from Republicans who have constituents who are concerned about loosing property, including Watch Senator Cohn Cornyn, who is an ally of the presidents, and would potentially be behind him, but, number one, he has an issue with the separation of powers, but he also has constituents who could be suing the Administration. So again, one of those really awkward positions for Republicans, they can't win on this.

CAMEROTA: I should hope that they are upset about immanent domain, because again, I remember when Republicans used to go ballistic about immanent domain.

MCKINNON: That's such a conservative Republican issue. You talk about Texas ranchers and Arizona ranchers along the border, they're all Republicans, they're all conservative. You start taking their land, there's nothing more conservative than that.

AVLON: And yet, the president campaign praising immanent domain and it didn't hurt him with the base any. But, you're going to have a fascinating conflict because this is a real root wound that a lot of Republican's do. Railing against the Federal Government for taking their property, that is basic.

Look, one thing I want to get to is that Stephen Miller in the at clean-up on aisle four, that Rachel just described, took a broad swipe at your former boss, George W. Bush, basically saying that the Bush Administration did nothing to stop border crossings.

CAMEROTA: In fact, it only increased like ten fold or whatever the number he used during the time.

MCKINNON: Yes, well, once again the facts don't really align with the history. That's not the case, but on the broader issue of immigration, it's just interesting to see how things have dramatically changed in 20 years.

A friendly position towards immigration is the -- it was one of the things that brought me across the bridge to join the Republican Party. And so, to go from -- and fought like hell -- and by the way, he said, during that 2000 campaign, that he felt strongly enough that he wanted to campaign on that issue in a way of embracing immigrants. And a lot of (inaudible) said that's crazy, you can't do that. And he said, I'm going to it because I believe in it passionately.

[06:10:00]

MCKINNON: And because I'm a compassionate conservative." And to see where we've come from there to here is really remarkable in the whole history of this issue. So we've been fighting over this issue now for like a quarter of my life since mid-90s, right -

CAMEROTA: Yes.

AVLON: Yes.

MCKINNON: - when we started talking about this

CAMEROTA: Elie, in terms of the emergency nature of this, will a judge look at the fact that the president is spending this emergency at Mar-a-Largo at his golf club and the fact that Stephen Miller said on TV this weekend that the wall - the fence would be built about two years from now? Why would it take two years to build somewhere between 55 miles of fencing and I think the new number they said was 230? Why would it take two years if this is an emergency?

ELIE HONIG, CNN LEGAL ANALYST: Yes, looking at it from an attorney's point of view, it's such a flimsy pretext and I think this could really hurt the emergency declaration in the courts on a couple levels. First of all, the data's just not there. I mean, Mark alluded to this. The basis for this is people are pouring over the boarder -

CAMEROTA: It's an invasion is what they claim.

HONIG: Right, and - but the data doesn't bear that out. Anecdotes aren't going to hack in court. You have to have real data. Also this notion that illegal drugs that people are overdosing on is pouring over the boarder - statistically not true in my experience as a prosecutor. And then you look at the president's own actions, how long it's taken, how long it will take. All of that, I think, can paint a pretty compelling picture legally that this is not a legitimate emergency.

AVLON: All right, fascinating analysis. We'll see how it contrasts with the president's actions. Gentlemen, thank you all very much. We're going to take it there. Rachel, thank you. A programming note, the Democratic presidential candidate, Senator Amy Klobuchar, is going to take part in a CNN Town Hall tonight with Don Lemon at 10 p.m. in new Hampshire.

CAMEROTA: Can't wait to watch that. All right, meanwhile Fire Deputy Director - FBI Director, Andrew McCabe, is speaking out about the chaotic months after James Comey was fired from the FBI. So why his words have one top Republican calling for an investigation next.

(COMMERCIAL BREAK)

[06:15:00]

AVLON: Republican Senator Lindsay Graham vows to investigate fired FBI Director, Andrew McCabe's claims. There were discussions to try to remove President Trump from office.

(BEGIN VIDEOCLIP)

ANDREW MCCABE, FORMER FBI DEPUTY DIRECTOR: Discussion of the 25th amendment was simply Rod raised the issue and discussed it with me in the context of thinking about how many other cabinet officials might support such an effort. I didn't have much to contribute to be perfectly honest in that conversation, so I listened to what he had to say. But to be fair, it was an unbelievably stressful time. I can't even describe for you how many things must have been coursing through the Deputy Attorney General's mind at that point, so it was really something that he kind of threw out in a - in a very frenzied, chaotic conversation about where we were and what we needed to do next.

(END VIDEOCLIP)

AVLON: Rachael Bade and Elie Honig are back with us. Let's also bring in former federal prosecutor for the Southern District of New York, Jennifer Rogers. Well, Jennifer, but Rachael, I want to start with you because Senator Lindsay Graham saying he wants to hold hearings into this claim by McCabe that there were conversations about invoking the 25th amendment. Nothing more serious than that kind of an invocation being - conversation being happened at justice, but what do you think the prospects are for this kind of hearing? Is it theater or could it lead to something more substantive?

BADE: Couple thoughts on that. First of all, just that clip is absolutely stunning. The number - former number two at the FBI saying the former number two at the Justice Department, again, talked about wearing a wiring and potentially ousting the president, invoking the 25th amendment. That came up originally in October a few weeks before the election, and there was a lot of talk about it then, but it was never really addressed. Rosenstein has sort of said I was - this was sort of in a joking capacity. He sort of denied these reports, but it's a he said, she said situation and House Republicans at the time thought about looking into it, but it was right before an election. Ultimately they decided not to bring Rosenstein in or McCabe in to actually ask about this in public. So right now what you're seeing is Lindsay Graham picking up where they left off now that the House Republicans have lost their majority, and I do think it's a legitimate inquiry, right? I mean, this is a very serious allegation, and even Senator Coons who is a Democrat and was responding to Lindsay Graham saying he wanted to investigate this and look at it didn't push back on that and agreed that it was a serious issue they should look at. However, this gives Republicans that sort of counter narrative that they have been looking for to try to undercut the FBI, the DOJ, the sort of investigating the investigator.

AVLON: Right.

BADE: As you know, House Republicans have tried to say that there's bias there and that there is some sort of - they're out to get the president, and this is sort of pushing back on what you're going to see House Democrats do in investigating the president and Mueller in his report coming out. So it's politics but also I think a legitimate inquiry to at least look at it.

CAMEROTA: But I don't know, Elie. I wish that McCabe had expounded on that a little bit more. Was it just because of the James Comey firing? What else was it? He didn't explain what it was that made Rod Rosenstein say that they might have to invoke the 25th amendment. That would have been helpful.

HONIG: Yes, and I don't think the 25th amendment is a great look for the FBI or a great fit for what was happening here. Perhaps the president was acting irrationally in ways that were surprising, but that's not what the 25th amendment's for. It's for a president who's incapacitated. It was passed after the Kennedy assassination. People were concerned what if you have a president who's in a coma. There are other things that can be done, and the thing I think the FBI did that was right was setting up those investigations - the counter-intel and the obstruction of justice investigation. They're readying the lifeboats there. What if the president comes in and fires us all and sinks the main investigation. We need some way to make sure that we keep an eye on this. That, I think, was a very smart move that McCabe and Rosenstein did and that we're continuing to see the impact of today.

AVLON: Jennifer, I mean, that really was the case that McCabe laid out that the president's own comments were in his telling what compelled them to unleash this unprecedented investigation - counter- intel investigation into whether the president was being influenced by Russia. Do you think the case he made was persuasive or the information that came - is coming out, does it cause more questions for you about his preoccupation with Russia, the president's?

JENNIFER ROGERS, FORMER PROSECUTOR FOR THE SOUTHERN DISTRICT OF NEW YORK: Well, I think there could be no question that it's persuasive.

[06:20:00]

I mean, you know, remember we now have Mueller's investigation which came on the heels of the FBI opening their own investigation, then Mueller's appointed now. We have, you know, dozens of people involved. We have so many indictments. We have cases pleading guilty, people in prison. So there's no question that that was a legitimate investigation to start and that it's reaping results. And, you know, it's just incredible that the thought that in this time - in this chaotic time as McCabe said you have the Head of the FBI acting, the Head of DOJ acting, two lifelong Republicans saying the president is behaving in such a way that we have to investigate him to determine whether or not he's an asset of the Russian Government. I mean, it's astounding, and while we didn't learn a lot of new facts from McCabe's interview last night, that's one thing that even though we knew that already, I think it's important that everyone kind of take back - take stock of (ph) - step back and take stock of (ph) because it is astounding.

CAMEROTA: Rachael, one more moment that we want to play, and that is that in the job interview, Andrew McCabe was ask by President Trump who he voted for. And that is just so telling. That's what was on the president's mind. That's what the president's top priority was. Here is that moment from Andrew McCabe.

(BEGIN VIDEOCLIP)

UNIDENTIFIED MALE: Did the president ever ask you how you voted?

MCCABE: He did. He did. In our second meeting, which was the day after Jim Comey was fired, he asked me who I'd voted for, which was striking because I had been counseled for years by our internal ethics advisors that you never ask people who they voted for. And at that meeting, I didn't give him a straight answer. So during the job interview I said to him, "Mr. President, the last time I was here you asked me a question, so if that's OK, I'd like to go back to that." And he said fine. And then I explained to him that I had been a Republican my entire life, that I voted for the Republican candidate for presidency every prior election, but in the 2016 election I did not. I chose not to vote at all because of the political nature of the investigations that we were involved in at the time. I just thought that it was better that I sit that one out.

(END VIDEOCLIP)

CAMEROTA: Rachael, here's what I think is so important for everybody to note. That partisan lens is how President Trump sees everything. That's how he organizes his thoughts. That's how he organizes who his alliances are with. That's how he organizes his world view. So that's the only question really. It doesn't matter what your credentials are or what your experience is. Who did you vote - did you vote for me is the top question. BADE: That's right.

AVLON: Yes.

BADE: That's right. I mean, this is a president who has valued loyalty and demanded loyalty from fellow Republicans and folks even in government who should be in nonpartisan and a-political positions. Did you vote for me and are you a supporter of mine? Look, this is the FBI. This is an agency that is charged with upholding our laws and holding people accountable and top law enforcement that, you know, our country would be unraveling without them. You need people who are able to put politics aside. And yes, politics should not matter. It should be about exactly your credentials, but again this president from day one and even before then, he has sought people who are allies of him and put them in key positions, and it's clearly problematic.

AVLON: And what's striking, too, is McCabe, lifelong Republican, simply sat out the election for fear of creating a conflict, but that wasn't good enough. It's about personal loyalty, not even partisan affiliation. Pretty stunning.

CAMEROTA: All right, we need to talk about -

AVLON: Yes.

CAMEROTA: - Heather Nauert and what happened over the weekend. So Heather Nauert was President Trump's pick to become U.N. Ambassador and her nomination process was scuttled. Elie, she withdrew her name it seems like because there was a nanny that didn't have, I guess, a green card or the proper papers. How is it - please explain to me how it is possible that having a nanny without the proper paperwork but was here legally without the proper paperwork can derail Heather Nauert when there have been dozens at last count, actually at least 100 undocumented workers who have worked at President Trump's golf clubs. Explain how that double standard works.

HONIG: Yes, the irony is on so many different levels here. First of all, the idea that this president has banked so much politically on taking a hard line against immigration, and yet he's got dozens apparently of people working for him -

CAMEROTA: I mean, according to The Washington Post investigation, they had 100 at just the Bedminister Club.

HONIG: Yes.

CAMEROTA: They were not doing counting at Mar-a-Lago yet.

HONIG: Right, and worse than that it seems some of them were mistreated, right? Some of them were threatened, potentially abused. There's been allegations along those lines. And then you have this nominee who has one person working without a green card. Not acceptable typically, but the hypocracy of someone being derailed for having one versus the president himself having dozens who were mistreated, there's no squaring it.

CAMEROTA: I really thought that after this -

AVLON: Yes.

HONIG: Squaring it.

CAMEROTA: I really thought that after this - that after President Trump that this was a norm that would stay permanently broken. I really thought that we wouldn't see people who had a nanny problem be -- have their careers derailed, because the president has employed dozens and dozens of undocumented workers.

[06:25:00]

AVLON: (Inaudible) this administration.

RODGERS: Yes, I agree about this hypocrisy, but I've to say, listen, if you're going to work in government you ought to follow the rules. I mean, can't tell you how much I've paid a nanny taxes over the years. If you're going to be in the government, you need to follow the rules.

CAMEROTA: But why don't the rules apply to the president?

RODGERS: I think that they should, but I think that's the problem here, right? I don't think it's that her nominations got derailed when, frankly, it should have. You really do have to follow these rules, they're important. And when you're in government, you know them and you're told to follow them. Trump should follow them too. That's really the problem here.

BADE: And you have to also realize that she had issues beyond just the nanny, right? I mean there were a bunch of Democrats on the Hill who were getting ready to totally just tear her resume apart because she didn't have a long resume and they didn't believe that she was qualified for this position.

So, she was facing a tough confirmation process to begin with. This was only going to make it more ugly. So, I wouldn't be surprised if she made a personal decision, this is too much for me to bear, I'm going to pull out.

AVLON: Rachel's pointing out the substance problem, yes, thank you for doing that. We should also note that CNN's Jamie Gangel reporting that she will -- Heather will not be returning to her position as a State Department spokeswoman. So ...

CAMEROTA: And I just don't whether that's voluntary or not. And, if it's not voluntary, if she lost her job because of this nanny situation, I really thing that we need to highlight that because how the rules don't apply to the president.

AVLON: Hypocrisy should still matter.

CAMEROTA: Thank you.

AVLON: All right, coming up next, a stunning new twist in the alleged hate crime attack on "Empire" actor Jussie Smollett. The Chicago police are saying now and why it's raising more questions about whether is was all a hoax. Up next.

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